An Interesting Move by the National Labor Relations Board in the Ongoing Fight Over Employee/Independent Contractor Misclassification

I just saw a very interesting news report about an action by the National Labor Relations Board (NLRB) that may be an important move in the current fight over the classification and misclassification of employees and independent contractors. With concerns about the “gig economy” (i.e. Uber etc.) and other forms of informal, “non-employee” employment becoming a topic of conversation this action by the NLRB is a welcome response to people pushing the Administration to do more to ensure our employment laws are being followed in letter and in spirit.

As I have previously discussed, misclassifying a worker as an independent contractor rather than an employee is not necessarily in and of itself a violation of any law. Usually the issue is an employer is not following employment laws, like the requirement to pay overtime, because the employer is treating their workers as independent contractors rather than employees. One would then sue the employer for failure to pay overtime.

The problem is in certain situations it might be the case that even though the employer misclassified their workers as independent contractors they didn’t violate any employment laws while doing so meaning the misclassified employees may not have a private right of action against the employer. This could happen if, for example, the misclassified employees only worked 32 hours a week meaning they didn’t work overtime and they were paid $8 an hour meaning they earned at least minimum wage for all hours worked. In that situation an employee may be able to contact the IRS and other federal and state agencies but they may not be able to sue the employer themselves.

That is one reason why the NLRB’s move is potentially so important. The NLRB filed a complaint against a company operating intermodal transport at a port in California. The complaint alleges what are know as “Section 8(a)(1)” violations which is when an employer somehow restrains the rights of employees under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activity in regards to their job and working conditions.

The complaint claims the company, by misclassifying their drivers as independent contractors instead of employees, was preventing those employees from engaging in concerted activity as allowed by Section 7 and thus committing a violation of Section 8(a)(1) of the NLRA.

If this complaint is successful it would be a huge weapon for misclassified employees. The very act of misclassifying an employee as an independent contractor would by itself be a violation of the law without requiring an employee to show anything else. The logic underlying the complaint seems to be by misclassifying employees as contractors the employer is trying to prevent employees from getting together to discuss wages and job conditions because by classifying the workers as contractors they are not protected by the NLRA and its rights under Section 7 as the NLRA only protects employees.


Filing this complaint also shows the NLRB is aggressively fighting for workers and their rights. It is another reminder of how important it will be to elect a President this year who will support the NLRB in their fight like President Obama.


If you are a worker in Atlanta or in Georgia and you believe you have been misclassified as an independent contractor please contact attorney Benjamin Kandy at ben@bkandylaw.com or 678 824 2251 for a consultation.

As always, this is not legal advice and does not give rise to any attorney-client relationship. If you are in a state other than Georgia go to NELA.org to find a good employment lawyer near you.